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Bibliographical references in "Notes" (p. 153-162)

McIlwain, Charles Howard. Constitutionalism: Ancient and Modern . Revised ed., Liberty Fund, 2007. Historical and Political Context McIlwain wrote at a time when constitutional principles were under siege by authoritarian ideologies in Europe and legal positivism in politics. Delivered as lectures at Cornell University during 1938–39 and revised after World War II, the text reflects a concern that societies were abandoning legal restraint for the expediency of unchecked governmental power. McIlwain’s work traces the lineage of constitutionalism from the classical world through medieval Europe to the modern Anglo-American tradition. He emphasizes that never before had constitutionalism—understood as the limitation of government by law—been so threatened as it was in the mid-20th century. This historical urgency lends the work a strong normative commitment to legalism and liberty under law. Legal Philosophy and Foundations At the heart of McIlwain’s analysis is the idea that constitutionalism rests on the premise that government must be legally limited. Drawing from ancient, medieval, and Enlightenment sources, McIlwain distinguishes between the power of government and the authority of the constitution. He affirms the idea that constitutions, particularly written ones, are not created by governments but by the people to define and constrain those governments. The legal tradition he defends is rooted in natural law and historical precedent, not in arbitrary or majoritarian command. In this sense, McIlwain’s view leans toward a synthesis of classical natural law and modern constitutionalism—law is not simply the will of the sovereign but is bound by reason, justice, and historical continuity. Moral Framework and the Idea of Justice McIlwain sees constitutionalism as morally superior because it insists that power must be exercised within a framework of justice. He is especially concerned with safeguarding freedom through order and restraint. Justice, in this tradition, is not an abstract ideal imposed from above but the product of lawful governance, respect for precedent, and fidelity to institutional balance. McIlwain critiques both royal absolutism and legislative tyranny, arguing that justice must be administered within limits that protect the dignity and liberty of all. Thus, moral values such as equity, accountability, and individual conscience are built into the constitutional order. Faith, Religion, and Divine Authority Although not a theological text, McIlwain’s work reflects the historical role that religious ideas played in shaping legal authority. He acknowledges that medieval constitutionalism drew heavily on a Christian-natural law framework in which divine law stood above kings and parliaments alike. However, his own approach is more historical and philosophical than religious. Still, he treats religion as an important cultural source of legitimacy for legal norms, especially through concepts like justice, sovereignty, and the moral limits of human law. Divine authority may not be central to modern constitutions, but its legacy in shaping early limits on power is clear in McIlwain’s analysis. Legal Institutions and Their Constitutional Purpose Courts, parliaments, and other legal bodies exist, McIlwain argues, not merely to legislate or govern, but to restrain arbitrary power. He is particularly concerned with the evolution of parliamentary sovereignty in England, warning that the unchecked authority of a legislature can become just as despotic as that of a monarch. Legal institutions, when functioning properly, are protective, not repressive. They offer a mechanism to mediate between power and right, especially when they are grounded in constitutional principles. McIlwain defends the function of the judiciary as a critical check on overreach, especially in light of the absence of written constitutional limits in parliamentary systems like Britain’s. Knowledge, Law, and Truth: The Epistemology of Constitutionalism McIlwain approaches the question of how we know what is just or lawful by highlighting the role of historical experience, legal tradition, and reason. He argues that truth in politics is not discovered through sheer ideology or command but through a reasoned understanding of institutional development and precedent. In earlier periods, knowledge of the law came from custom; in modern constitutionalism, it is more likely to come from written texts, judicial interpretation, and civic education. In both cases, he stresses the importance of accumulated wisdom, not raw will, in shaping a lawful society. Civic Virtue and the Role of the Citizen Constitutionalism depends not only on institutions but also on the character of the citizenry. McIlwain praises those figures—such as Thomas Paine, James Otis, and Lord Camden—who insisted on the separation between government and constitution and who stood against unlawful authority. He believes that citizens must not only obey lawful governments but must also be prepared to resist governments that exceed their constitutional limits. Ideal citizens, lawmakers, and jurors should be marked by restraint, a sense of justice, and a commitment to public reason. Civic virtue lies in the willingness to uphold constitutional values even when it is politically inconvenient. Argumentative Style and Use of Sources McIlwain's rhetorical method is scholarly and analogical. He draws on a wide range of historical examples—from ancient Athens and Rome to 17th-century England and revolutionary America—to build his case for constitutionalism. His writing is dense but accessible, using logical structure and authoritative citations rather than emotional appeals. The argument develops historically and deductively, with clear distinctions between periods, ideas, and legal traditions. His approach rewards careful reading and is best suited for students with a serious interest in political philosophy or legal history. Hidden Assumptions and Authorial Biases While McIlwain is careful and even-handed in his historical treatment, he assumes the superiority of Anglo-American constitutional traditions. He favors legal restraint and gradual evolution over populist enthusiasm or revolutionary change. He is skeptical of any government—monarchic or democratic—that claims to act without limits. His bias is toward institutional continuity and legalism, and he takes for granted that “the people” are best protected by representation and law, not by direct political power. There is a conservative undercurrent in his work, but one committed to liberty through law. Modern Relevance and Contemporary Application Though written decades ago, McIlwain’s insights remain timely. His critique of parliamentary absolutism foreshadows contemporary concerns about majoritarian overreach, executive emergency powers, and the erosion of judicial independence. In an age where liberal democracies face pressures from both illiberal populism and authoritarian regimes, McIlwain’s warning is clear: constitutionalism is the legal and moral boundary between liberty and tyranny. His reflections offer vital context for debates over judicial review, civil disobedience, and constitutional legitimacy in both the U.S. and abroad. Suggested Discussion Questions How does McIlwain distinguish between government and constitution, and why does that distinction matter? What historical examples does he use to critique parliamentary or executive overreach, and what lessons do they offer today? In what sense is constitutionalism both a legal and moral doctrine? Why does McIlwain argue that unwritten constitutional norms can be as powerful as written ones—and when do they fail? How should citizens respond when governments exercise “power without right”?

McIlwain, Charles Howard. Constitutionalism: Ancient and Modern . Revised ed., Liberty Fund, 2007. Historical and Political Context McIlwain wrote at a time when constitutional principles were under siege by authoritarian ideologies in Europe and legal positivism in politics. Delivered as lectures at Cornell University during 1938–39 and revised after World War II, the text reflects a concern that societies were abandoning legal restraint for the expediency of unchecked governmental power. McIlwain’s work traces the lineage of constitutionalism from the classical world through medieval Europe to the modern Anglo-American tradition. He emphasizes that never before had constitutionalism—understood as the limitation of government by law—been so threatened as it was in the mid-20th century. This historical urgency lends the work a strong normative commitment to legalism and liberty under law. Legal Philosophy and Foundations At the heart of McIlwain’s analysis is the idea that constitutionalism rests on the premise that government must be legally limited. Drawing from ancient, medieval, and Enlightenment sources, McIlwain distinguishes between the power of government and the authority of the constitution. He affirms the idea that constitutions, particularly written ones, are not created by governments but by the people to define and constrain those governments. The legal tradition he defends is rooted in natural law and historical precedent, not in arbitrary or majoritarian command. In this sense, McIlwain’s view leans toward a synthesis of classical natural law and modern constitutionalism—law is not simply the will of the sovereign but is bound by reason, justice, and historical continuity. Moral Framework and the Idea of Justice McIlwain sees constitutionalism as morally superior because it insists that power must be exercised within a framework of justice. He is especially concerned with safeguarding freedom through order and restraint. Justice, in this tradition, is not an abstract ideal imposed from above but the product of lawful governance, respect for precedent, and fidelity to institutional balance. McIlwain critiques both royal absolutism and legislative tyranny, arguing that justice must be administered within limits that protect the dignity and liberty of all. Thus, moral values such as equity, accountability, and individual conscience are built into the constitutional order. Faith, Religion, and Divine Authority Although not a theological text, McIlwain’s work reflects the historical role that religious ideas played in shaping legal authority. He acknowledges that medieval constitutionalism drew heavily on a Christian-natural law framework in which divine law stood above kings and parliaments alike. However, his own approach is more historical and philosophical than religious. Still, he treats religion as an important cultural source of legitimacy for legal norms, especially through concepts like justice, sovereignty, and the moral limits of human law. Divine authority may not be central to modern constitutions, but its legacy in shaping early limits on power is clear in McIlwain’s analysis. Legal Institutions and Their Constitutional Purpose Courts, parliaments, and other legal bodies exist, McIlwain argues, not merely to legislate or govern, but to restrain arbitrary power. He is particularly concerned with the evolution of parliamentary sovereignty in England, warning that the unchecked authority of a legislature can become just as despotic as that of a monarch. Legal institutions, when functioning properly, are protective, not repressive. They offer a mechanism to mediate between power and right, especially when they are grounded in constitutional principles. McIlwain defends the function of the judiciary as a critical check on overreach, especially in light of the absence of written constitutional limits in parliamentary systems like Britain’s. Knowledge, Law, and Truth: The Epistemology of Constitutionalism McIlwain approaches the question of how we know what is just or lawful by highlighting the role of historical experience, legal tradition, and reason. He argues that truth in politics is not discovered through sheer ideology or command but through a reasoned understanding of institutional development and precedent. In earlier periods, knowledge of the law came from custom; in modern constitutionalism, it is more likely to come from written texts, judicial interpretation, and civic education. In both cases, he stresses the importance of accumulated wisdom, not raw will, in shaping a lawful society. Civic Virtue and the Role of the Citizen Constitutionalism depends not only on institutions but also on the character of the citizenry. McIlwain praises those figures—such as Thomas Paine, James Otis, and Lord Camden—who insisted on the separation between government and constitution and who stood against unlawful authority. He believes that citizens must not only obey lawful governments but must also be prepared to resist governments that exceed their constitutional limits. Ideal citizens, lawmakers, and jurors should be marked by restraint, a sense of justice, and a commitment to public reason. Civic virtue lies in the willingness to uphold constitutional values even when it is politically inconvenient. Argumentative Style and Use of Sources McIlwain's rhetorical method is scholarly and analogical. He draws on a wide range of historical examples—from ancient Athens and Rome to 17th-century England and revolutionary America—to build his case for constitutionalism. His writing is dense but accessible, using logical structure and authoritative citations rather than emotional appeals. The argument develops historically and deductively, with clear distinctions between periods, ideas, and legal traditions. His approach rewards careful reading and is best suited for students with a serious interest in political philosophy or legal history. Hidden Assumptions and Authorial Biases While McIlwain is careful and even-handed in his historical treatment, he assumes the superiority of Anglo-American constitutional traditions. He favors legal restraint and gradual evolution over populist enthusiasm or revolutionary change. He is skeptical of any government—monarchic or democratic—that claims to act without limits. His bias is toward institutional continuity and legalism, and he takes for granted that “the people” are best protected by representation and law, not by direct political power. There is a conservative undercurrent in his work, but one committed to liberty through law. Modern Relevance and Contemporary Application Though written decades ago, McIlwain’s insights remain timely. His critique of parliamentary absolutism foreshadows contemporary concerns about majoritarian overreach, executive emergency powers, and the erosion of judicial independence. In an age where liberal democracies face pressures from both illiberal populism and authoritarian regimes, McIlwain’s warning is clear: constitutionalism is the legal and moral boundary between liberty and tyranny. His reflections offer vital context for debates over judicial review, civil disobedience, and constitutional legitimacy in both the U.S. and abroad. Suggested Discussion Questions How does McIlwain distinguish between government and constitution, and why does that distinction matter? What historical examples does he use to critique parliamentary or executive overreach, and what lessons do they offer today? In what sense is constitutionalism both a legal and moral doctrine? Why does McIlwain argue that unwritten constitutional norms can be as powerful as written ones—and when do they fail? How should citizens respond when governments exercise “power without right”?

McIlwain, Charles Howard. Constitutionalism: Ancient and Modern . Revised ed., Liberty Fund, 2007. Historical and Political Context McIlwain wrote at a time when constitutional principles were under siege by authoritarian ideologies in Europe and legal positivism in politics. Delivered as lectures at Cornell University during 1938–39 and revised after World War II, the text reflects a concern that societies were abandoning legal restraint for the expediency of unchecked governmental power. McIlwain’s work traces the lineage of constitutionalism from the classical world through medieval Europe to the modern Anglo-American tradition. He emphasizes that never before had constitutionalism—understood as the limitation of government by law—been so threatened as it was in the mid-20th century. This historical urgency lends the work a strong normative commitment to legalism and liberty under law. Legal Philosophy and Foundations At the heart of McIlwain’s analysis is the idea that constitutionalism rests on the premise that government must be legally limited. Drawing from ancient, medieval, and Enlightenment sources, McIlwain distinguishes between the power of government and the authority of the constitution. He affirms the idea that constitutions, particularly written ones, are not created by governments but by the people to define and constrain those governments. The legal tradition he defends is rooted in natural law and historical precedent, not in arbitrary or majoritarian command. In this sense, McIlwain’s view leans toward a synthesis of classical natural law and modern constitutionalism—law is not simply the will of the sovereign but is bound by reason, justice, and historical continuity. Moral Framework and the Idea of Justice McIlwain sees constitutionalism as morally superior because it insists that power must be exercised within a framework of justice. He is especially concerned with safeguarding freedom through order and restraint. Justice, in this tradition, is not an abstract ideal imposed from above but the product of lawful governance, respect for precedent, and fidelity to institutional balance. McIlwain critiques both royal absolutism and legislative tyranny, arguing that justice must be administered within limits that protect the dignity and liberty of all. Thus, moral values such as equity, accountability, and individual conscience are built into the constitutional order. Faith, Religion, and Divine Authority Although not a theological text, McIlwain’s work reflects the historical role that religious ideas played in shaping legal authority. He acknowledges that medieval constitutionalism drew heavily on a Christian-natural law framework in which divine law stood above kings and parliaments alike. However, his own approach is more historical and philosophical than religious. Still, he treats religion as an important cultural source of legitimacy for legal norms, especially through concepts like justice, sovereignty, and the moral limits of human law. Divine authority may not be central to modern constitutions, but its legacy in shaping early limits on power is clear in McIlwain’s analysis. Legal Institutions and Their Constitutional Purpose Courts, parliaments, and other legal bodies exist, McIlwain argues, not merely to legislate or govern, but to restrain arbitrary power. He is particularly concerned with the evolution of parliamentary sovereignty in England, warning that the unchecked authority of a legislature can become just as despotic as that of a monarch. Legal institutions, when functioning properly, are protective, not repressive. They offer a mechanism to mediate between power and right, especially when they are grounded in constitutional principles. McIlwain defends the function of the judiciary as a critical check on overreach, especially in light of the absence of written constitutional limits in parliamentary systems like Britain’s. Knowledge, Law, and Truth: The Epistemology of Constitutionalism McIlwain approaches the question of how we know what is just or lawful by highlighting the role of historical experience, legal tradition, and reason. He argues that truth in politics is not discovered through sheer ideology or command but through a reasoned understanding of institutional development and precedent. In earlier periods, knowledge of the law came from custom; in modern constitutionalism, it is more likely to come from written texts, judicial interpretation, and civic education. In both cases, he stresses the importance of accumulated wisdom, not raw will, in shaping a lawful society. Civic Virtue and the Role of the Citizen Constitutionalism depends not only on institutions but also on the character of the citizenry. McIlwain praises those figures—such as Thomas Paine, James Otis, and Lord Camden—who insisted on the separation between government and constitution and who stood against unlawful authority. He believes that citizens must not only obey lawful governments but must also be prepared to resist governments that exceed their constitutional limits. Ideal citizens, lawmakers, and jurors should be marked by restraint, a sense of justice, and a commitment to public reason. Civic virtue lies in the willingness to uphold constitutional values even when it is politically inconvenient. Argumentative Style and Use of Sources McIlwain's rhetorical method is scholarly and analogical. He draws on a wide range of historical examples—from ancient Athens and Rome to 17th-century England and revolutionary America—to build his case for constitutionalism. His writing is dense but accessible, using logical structure and authoritative citations rather than emotional appeals. The argument develops historically and deductively, with clear distinctions between periods, ideas, and legal traditions. His approach rewards careful reading and is best suited for students with a serious interest in political philosophy or legal history. Hidden Assumptions and Authorial Biases While McIlwain is careful and even-handed in his historical treatment, he assumes the superiority of Anglo-American constitutional traditions. He favors legal restraint and gradual evolution over populist enthusiasm or revolutionary change. He is skeptical of any government—monarchic or democratic—that claims to act without limits. His bias is toward institutional continuity and legalism, and he takes for granted that “the people” are best protected by representation and law, not by direct political power. There is a conservative undercurrent in his work, but one committed to liberty through law. Modern Relevance and Contemporary Application Though written decades ago, McIlwain’s insights remain timely. His critique of parliamentary absolutism foreshadows contemporary concerns about majoritarian overreach, executive emergency powers, and the erosion of judicial independence. In an age where liberal democracies face pressures from both illiberal populism and authoritarian regimes, McIlwain’s warning is clear: constitutionalism is the legal and moral boundary between liberty and tyranny. His reflections offer vital context for debates over judicial review, civil disobedience, and constitutional legitimacy in both the U.S. and abroad. Suggested Discussion Questions How does McIlwain distinguish between government and constitution, and why does that distinction matter? What historical examples does he use to critique parliamentary or executive overreach, and what lessons do they offer today? In what sense is constitutionalism both a legal and moral doctrine? Why does McIlwain argue that unwritten constitutional norms can be as powerful as written ones—and when do they fail? How should citizens respond when governments exercise “power without right”?

Book Source: Digital Library of India Item 2015.274969 dc.contributor.author: Charles Howard Mcilwain dc.date.accessioned: 2015-07-29T19:58:31Z dc.date.available: 2015-07-29T19:58:31Z dc.identifier.barcode: 05990010896222 dc.identifier.origpath: /data58/upload/0097/939 dc.identifier.copyno: 1 dc.identifier.uri: http://www.new.dli.ernet.in/handle/2015/274969 dc.description.scannerno: 20003547 dc.description.scanningcentre: IIIT, Allahabad dc.description.main: 1 dc.description.tagged: 0 dc.description.totalpages: 191 dc.format.mimetype: application/pdf dc.language.iso: English dc.publisher.digitalrepublisher: Digital Library Of India dc.publisher: Cornell University Press Ithaca Newyork dc.rights: In Public Domain dc.source.library: Indian Institute Of Public Administration, New Delhi dc.subject.classification: Literature dc.title: Constitutionalism Ancient And Modern dc.type: ptiff dc.type: pdf

Book Source: Digital Library of India Item 2015.274969 dc.contributor.author: Charles Howard Mcilwain dc.date.accessioned: 2015-07-29T19:58:31Z dc.date.available: 2015-07-29T19:58:31Z dc.identifier.barcode: 05990010896222 dc.identifier.origpath: /data58/upload/0097/939 dc.identifier.copyno: 1 dc.identifier.uri: http://www.new.dli.ernet.in/handle/2015/274969 dc.description.scannerno: 20003547 dc.description.scanningcentre: IIIT, Allahabad dc.description.main: 1 dc.description.tagged: 0 dc.description.totalpages: 191 dc.format.mimetype: application/pdf dc.language.iso: English dc.publisher.digitalrepublisher: Digital Library Of India dc.publisher: Cornell University Press Ithaca Newyork dc.rights: In Public Domain dc.source.library: Indian Institute Of Public Administration, New Delhi dc.subject.classification: Literature dc.title: Constitutionalism Ancient And Modern dc.type: ptiff dc.type: pdf

Book Source: Digital Library of India Item 2015.274969 dc.contributor.author: Charles Howard Mcilwain dc.date.accessioned: 2015-07-29T19:58:31Z dc.date.available: 2015-07-29T19:58:31Z dc.identifier.barcode: 05990010896222 dc.identifier.origpath: /data58/upload/0097/939 dc.identifier.copyno: 1 dc.identifier.uri: http://www.new.dli.ernet.in/handle/2015/274969 dc.description.scannerno: 20003547 dc.description.scanningcentre: IIIT, Allahabad dc.description.main: 1 dc.description.tagged: 0 dc.description.totalpages: 191 dc.format.mimetype: application/pdf dc.language.iso: English dc.publisher.digitalrepublisher: Digital Library Of India dc.publisher: Cornell University Press Ithaca Newyork dc.rights: In Public Domain dc.source.library: Indian Institute Of Public Administration, New Delhi dc.subject.classification: Literature dc.title: Constitutionalism Ancient And Modern dc.type: ptiff dc.type: pdf

Book Source: Digital Library of India Item 2015.12420 dc.contributor.author: C H Mcilwain dc.date.accessioned: 2015-06-23T11:12:26Z dc.date.available: 2015-06-23T11:12:26Z dc.date.citation: 1947 dc.identifier.barcode: 5990010151148 dc.identifier.origpath: /data1/upload/0006/245 dc.identifier.copyno: 1 dc.identifier.uri: http://www.new.dli.ernet.in/handle/2015/12420 dc.description.scanningcentre: IIIT, Allahabad dc.description.main: 1 dc.description.tagged: 0 dc.description.totalpages: 190 dc.format.mimetype: application/pdf dc.language.iso: English dc.publisher: Cornell Univ. Press,newyork dc.rights: In Public Domain dc.source.library: University Of Allahabad dc.subject.classification: Literature dc.title: Constitutionalism Ancient And Modern